REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 415

September Term, 2012

LANA DANIELS

v.

BRENDA DANIELS

Meredith,

Nazarian, 

Sharer, J. Frederick

 (Retired, Specially Assigned),

JJ.

Opinion by Sharer, J.

 Filed: June 24, 2014
It is established that, in order to effectively convey title to real property, the title

documents – ordinarily a deed – must be delivered by the grantor to the grantee. An

exception to the requirement of actual delivery is found in the doctrine of constructive

delivery.

In the Circuit Court for Baltimore County, the court ruled that the conduct of James

H. Daniels, which we shall detail, infra, did not satisfy the requirements of either actual or

constructive delivery of a deed by Daniels to his wife, appellant, Lana Daniels. Hence, the

court, after a bench trial, entered judgment for appellee, Brenda Daniels, Personal

Representative of the Estate of James H. Daniels.

In her timely appeal, appellant presents the following question:

Does constructive delivery of a deed occur where the husband executes a

tenants by the entireties deed, informs his wife, and places the unrecorded deed

with the couple’s important papers?

For the reasons set forth below, we answer this question “no” and affirm the judgment of the

circuit court.

FACTUAL and PROCEDURAL HISTORY

James H. Daniels (“Daniels”) died intestate. Appellee, Brenda Daniels, his daughter

from a former marriage, qualified as personal representative of his estate. In her capacity,

Brenda filed a complaint in the Circuit Court for Baltimore County to quiet title, which

sought to have real property at 1602 Frederick Road, Catonsville, included as an asset of the

estate. The suit to quiet title asserted that paper title to the property was based on a deed,
recorded in 1987, to Daniels and his mother, Emily Daniels, as joint tenants. Upon Emily

Daniels’s death in 2005, Daniels became the surviving owner. 

At the time of his death, Daniels was residing with appellant, Lana Daniels. Appellant

asserts ownership of 1602 Frederick Road by virtue of a deed that was executed by her

husband and witnessed and notarized on March 3, 2006, naming himself and appellant as

tenants by the entireties. The deed was not recorded until May 12, 2011, after Daniels’s

death.

Daniels’s execution of the deed on March 3, 2006, occurred during a meeting with his

stepdaughter, Leslie Robin Cadey, an escrow closer and underwriter, and Ingrid Chichester,

a notary and title officer. Chichester witnessed Daniels sign the deed and notarized his

signature. Cadey testified that Daniels retained possession of the deed, despite her advice

that he have it recorded. Daniels, for some reason, did not follow that advice and, as we shall

discuss, placed the deed among his and appellant’s personal papers in their home. 

At the time the deed was executed, and thereafter for some time, appellant was in

Texas receiving medical treatments. She related to the court that when she returned home,

Daniels informed her that “he had added her name on the deed.” 

Appellant testified that on the day of her husband’s death, her daughter, Cadey, was

helping her locate a life insurance policy in a bedroom file cabinet that held “all of our

important papers.” The cabinet contained, inter alia, personal documents, insurance policies,

and the deed to their marital residence at 2407 Hammonds Ferry Road. During the search,

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Lana and Cadey came upon a file folder containing the executed deed to 1602 Frederick

Road. Appellant had not placed the deed in the cabinet, so she concluded that her husband

had done so. Upon finding the deed, Cadey asked appellant why it had not been recorded. 

Their assumption was that, because the property was lien free, recordation had not been

necessary. Testified Lana: “[W]e assumed, because there was no lien, we didn’t have to file

it.” 

Cadey testified that she had drawn the deed at Daniels’s request. She testified about

her meeting with Daniels and Chichester, and the execution of the deed, and recalled her

advice to Daniels to “go and record the deed in Baltimore County.” Chichester confirmed

that she witnessed Daniels sign the deed, and notarized his signature. She concluded that

“[n]othing was unusual.” 

Cadey testified that on the morning of Daniels’s death, while helping her mother get

papers together in order to complete funeral arrangements, she discovered the executed, but

unrecorded, deed in a bedroom file cabinet amongst personal papers of both Daniels and

appellant. A few weeks later Cadey consulted with counsel, who advised her to “guard it

with [her] life and to get it on record[,]” which Cadey did. 

After recordation of the deed, Brenda Daniels, as personal representative of the

Daniels estate, filed suit to quiet title, alleging that the unrecorded deed was of no effect and

that the property was an asset of the estate. Appellee maintained that there had been no

effective delivery of the deed, which rendered it void and inoperable. 

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The quiet title action was tried by the court on March 30, 2012. After hearing the

evidence that we have recounted and arguments of counsel, the court ruled that “there has

not been a delivery of the deed dated March, 2006 and recorded May 12, 2011.” 

The court orally explained its ruling: 

[Appellant] says this was in their possessions, which means that ... she did not

have exclusive dominion over these items where the deed was found. He

clearly had access to them throughout his lifetime, which means that he

... clearly could have revoked it at any point. It would have been a much

different case had this deed been found, for instance, in her safe deposit box

to which she had a key.... Recordation is not the essential element in this

case. It is delivery. And had the deed been delivered either to [appellant]

or to someone else as a third-party where Mr. Daniels, the decedent did

not have access to it, ... this deed would survive. But I applaud her for her

honesty, her candor. She says that it was in our things, in our file cabinet, with

our important documents. Not hers. Theirs. Which means that he had access

to it too. He could have – if he wanted, reached in there and tore it up if he

wanted or just taken it back. That being the case, delivery, being an essential

element to the legality of the deed, does fail. And I must find in favor of the

[appellee]. I, I am sorry because I do acknowledge that this was a forty year

marriage. And it is clear in, in the Court’s mind what the decedent’s intention

was. There’s been no question in the Court’s mind that he intended to transfer

the interest to his, his spouse of forty years. But I am without power to change

that under the law. So I must find in favor of [appellee], the Estate. I’ll ask

[counsel for appellee] to prepare an order to that effect.

(Emphasis added). 

The court’s Order, filed on April 13, 2012, provides, in relevant part:

ORDERED, that Judgment be and is hereby awarded in favor of the

Plaintiff and against the Defendant; and it is further

ORDERED, that The Estate of James H. Daniels, Register of Wills for

Baltimore County Estate No.: 163375, be and is hereby adjudged and decreed

to be the sole, true and lawful owner of all that real property situated in

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Baltimore County, State of Maryland, known as 1602 Frederick Road,

Catonsville, Maryland 21228; and it is further

ORDERED, that the Deed, dated March 3, 2006, by and between James

H. Daniels, Grantor, and James H. Daniel and Lana L. Daniels, Grantees, and

recorded among the Land Records of Baltimore County ... , having been

determined by this Court to be an insufficiently delivered Deed, is hereby

adjudged and decreed to be invalid and of no force and effect[.]

(Emphasis added). 

This timely appeal followed. 1

DISCUSSION

 Appellant concedes that there was not actual delivery of the deed, but posits that

Daniels’s actions were effective to transfer title under the doctrine of constructive delivery. 

Appellant argues that “constructive delivery of a deed occurs when the husband deeds his

property to himself and his wife, as tenants by the entireties, informs his wife, and places the

unrecorded deed with the couple’s important papers.” Thus, she concludes, the trial court

erred as a matter of law.

“Delivery is the last but an indispensable step by a grantor to give validity and

operative effect to a deed for conveyance of real estate. Execution and acknowledgment are

equally indispensable but, without delivery, accomplish nothing.” Fike v. Harshbarger, 20

Md. App. 661, 661-62 (1974), aff’d, 273 Md. 586 (1975). In order for the conveyance to 2

Appellee did participate in this appeal. 1

 Under the common law of Maryland, “when a spouse titles property as tenants by 2

(continued...)

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be held legally effective, all necessary elements of a gift must occur, including the intent to

transfer the property, relinquishment of control, delivery, and acceptance by the donee.

Dorsey v. Dorsey, 302 Md. 312, 318 (1985). 

In Fike, which involved a conveyance of real estate from father to daughter, and a

deed that was not recorded until after the father died, the sole issue was “whether or not there

was a proper and legal delivery of the deed from [father] to [daughter].” 273 Md. at 589. 

The Court of Appeals affirmed the decisions of both this Court and the Circuit Court for

Garrett County that, because the grantor’s daughter lacked “any evidence whatsoever to

indicate that Mr. Thomas surrendered control over same during his lifetime, it was not a valid

delivery of the deed under the laws of the State of Maryland.” Fike, 273 Md. at 589. The

Court wrote:

One hundred years ago our predecessors, through Judge Robinson,

stated in Duer v. James, 42 Md. 492 (1875), citing the opinion of the Supreme

Court of the United States in Younge v. Guilbeau, 70 U.S. (3 Wall.) 636, 18 L.

Ed. 262 (1866), that to constitute delivery of a deed the grantor must do some

act putting it beyond his power to revoke, that there can be no valid delivery

so long as the deed is within his control and subject to his authority, although

delivery need not be to the grantee, but may be to a third party authorized to

receive it, or even to a stranger for the use of the grantee.

Id. 

(...continued) 2

the entirety, a presumption of gift to the other spouse arises[.]” Dorsey v. Dorsey, 302

Md. 312, 317 (1985). 

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The concept that effective delivery is essential to the validity of a conveyance has

been long recognized by Maryland courts. See Clarke v. Ray, 1 Har. & J. 318 (1802)

(Delivery is essential to the validity of a deed); accord, Hearn v. Purnell, 110 Md. 458, 465

(1909) (Delivery is essential to the validity of a deed); Rogers v. Rogers, 271 Md. 603, 607

(1974) (Delivery requires transferring the donor’s dominion over the property without power

of revocation or retention of dominion over the subject of the gift). 

In the case sub judice, the trial court found that, based on direct evidence, Daniels

intended to make a gift of the property. The court further found, inferentially, that the donee

– appellant – had accepted the gift. The record supports these evidentiary findings. 

Conversely, the trial court found that the essential elements of delivery and relinquishment

of control were not proven. The record also supports that conclusion. Delivery requires that

the grantor be divested of all dominion and control over the deed. Fike, 20 Md. App. at 665. 

“The burden is on the donee to establish every element of a gift.” Dorsey, 302 Md. at 318. 

 Under Maryland law, delivery is consummated only when the instrument has passed

from the grantor, without any right of recall, to the grantee or to a third party for the use of

the grantee. Delivery without right of recall is essential to the conveyance of a deed. 

Gianakos v. Magiros, 234 Md. 14 (1964). “It is recognized that there has been a

consummated delivery when the instrument has passed from the grantor, without right of

recall, to the grantee or to some person for his use.” Id. at 27. 

The test of delivery is the relinquishment by the grantor of the custody

or control of the deed. When he has formally executed and acknowledged it

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and has delivered it unconditionally to the grantee, or one acting for him, the

conveyance is completed and the title has passed.

Krach v. Carson, 150 Md. 659, 662 (1926). 

The Court of Appeals has been consistent in ruling that actual delivery will be found

only when there has been a formal execution and delivery of the deed, without right of recall. 

Id. To constitute a delivery of a deed, the grantor must take some action which puts it

beyond his power to revoke. There can be no delivery so long as the deed is within the

grantor’s control and subject to his authority. Duer v. James, 42 Md. 492, 496 (1875); 

Renehan v. McAvoy, 116 Md. 356, 359 (1911) (Delivery, essential to the validity of every

deed, requires unconditional relinquishment by the grantor of the custody or control of the

instrument); Buchwald v. Buchwald, 175 Md. 115, 120 (1938) (Where there was no effective

delivery of the deed, it was invalid). 

Delivery may be to a third party, for the benefit of a grantee, as long as the grantor

relinquishes all control over the deed. See, e.g., Houlton v. Houlton, 119 Md. 180, 184

(1913) (Where deed delivered to third party for the grantee, who accepted it, conveyance held

complete); Clark v. Creswell, 112 Md. 339, 342 (1910) (After grantor executed,

acknowledged and delivered deed to third party, the conveyance is complete and title has

passed even though grantee unaware of delivery). The ultimate test of a valid delivery is the

grantor’s relinquishment of all custody and control over the deed, which would give the

grantor any power to revoke or to “take the deed back and destroy it[.]” Meise v. Tayman,

222 Md. 426, 431 (1960). 

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The record before us reveals that Daniels retained access and control over the deed

by placing it in a file folder containing both his and appellant’s personal documents – a file

to which each had equal access. Had he, for example, given the deed to appellant, with

instructions for future recordation, or had he placed it in her personal papers to which he had

no access, the court could have correctly found effective delivery. If Daniels, after executing

the deed, had given it to either Cadey or Chichester, with instructions as to recordation, the

court might well have found effective delivery. “There is a consummated delivery when the

instrument has passed from the grantor, without right of recall, to the grantee or some third

person for [the grantee’s] use.” Krach, 150 Md. at 662. 

Appellant advances the argument that Daniels’s act of placing the deed into the

couple’s common file, and telling her that he had placed her name on the deed, constituted

constructive delivery. In support of her position, she relies on two cases involving the

conveyance of stock certificates, Young v. Cockman, 182 Md. 246 (1943), and Allender v.

Allender, 199 Md. 541 (1952), both of which, in our view, are distinguishable. 

Allender, a widower and father of four adult children, married a widow who had one

child. 199 Md. at 544. Prior to his death, Allender transferred 369 shares of stock on the

books of a local company to his four children, and placed the newly issued stock certificates

in a safe deposit box, together with a new certificate for 137 shares in the names of himself

and his wife, Faye Allender, as tenants by the entireties. None of the donees was aware of

the transfers until after Allender’s death, intestate. Id. at 545. 

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His widow filed suit to set aside the transfers to his children. The Chancellor ruled

that the gifts failed “because there was no delivery, acceptance, relinquishment of dominion

or effective transfer of the shares.” Id. at 546. The Court of Appeals reversed, holding that

delivery was complete because “[n]othing more remained to be done to make the conveyance

of title complete and absolute, and, so far as the bank was concerned, it was irrevocable.” Id. 

“Every legal requirement was observed to divest him of all title to the stock and to place it

securely in the donee.” Id. at 547. Unlike the case before us, Allender retained no authority

or power to legally rescind the transaction or otherwise transfer the certificates “without the

consent of the co-owners.” Id. at 548. The Court emphasized the importance of the fact that

“the donor retained no legal control over the devolution of the joint interest at his death and

no power to revoke or undo what he had done[.]” Id. at 550. 

In Young v. Cockman, Cockman’s widow brought suit against his daughter to produce

a stock certificate which transferred stock in McCormick & Co. 182 Md. at 248. After the

Cockmans became estranged, she agreed to resume marital relations and care for him in

exchange for 60 shares of stock, which were owned jointly by Cockman and Young, his

daughter by a previous marriage. Cockman and daughter Young completed the assignment

on the certificate, indicating a transfer of the shares to Cockman and wife. However,

Cockman did not register the shares with the corporation, and retained possession of the

certificate. Id. Addressing the question of whether there had been a valid transfer of title to

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the stock, the Court held that there was a valid delivery, based upon an application of

contract law. Id. at 250. 

Delivery may be constructive, rather than actual, provided that it is

accompanied by words showing a donative intent. But, of course, either

constructive or actual delivery must completely divest the donor of his

property and completely invest the donee with it. 

Id. 

Considering their mutual agreement that Mrs. Cockman would care for her estranged

husband in exchange for the shares of stock, an agreement to which his daughter, Young, was

a party, the Court was compelled by equitable principles to order the corporation to transfer

the 60 shares of stock on its books to Mrs. Cockman. Id. at 252. The fulfilment of her

promise to care for Cockman until his death represented a valuable consideration. Id. The

Court held “that a contract between husband and wife, made when they are separated for just

cause, whereby the husband agrees to pay his wife a specified sum if she will resume marital

relations, rests upon a valuable consideration and is enforceable.” Id. at 253. 

Unlike Young, the intended transfer of property from Daniels to himself and his wife

was a gift, not a matter of contract. And, unlike Allender, Daniels retained dominion and

control over the file cabinet where the unrecorded deed remained throughout his lifetime;

thus, he had not completely relinquished control over the deed.

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We find no error in the circuit court’s findings and rulings that appellant did not

satisfy her burden of proving constructive delivery, and shall affirm.

JUDGMENT OF THE CIRCUIT COURT

FOR BALTIMORE COUNTY AFFIRMED; 

COSTS ASSESSED TO APPELLANT. 

 

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